Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

The object is not to study the way in which sovereign wealth fund activity in markets can eb regulated but instead the way that sovereign wealth funds may themselves regulate transnationally through their global market activities. The initial paper was presented at “A Market is a Market is a Market: Financial Regulation and the Role of Law in an Era of Globalization,” International Conference hosted by the University of Ferrara, Italy, Nov. 9-10, 2012, about which I will write soon.

Abstract: States, like non-state actors, are increasingly participating in markets. In the form of sovereign wealth funds (SWFs), states have project economic power beyond their borders. But some states are also using private market activities abroad to transform the way they can project their own legal regimes power beyond their territories, and in the process, are contributing to a fundamental re-orientation of the relationship between state, market and law. This study considers the way in which sovereign wealth funds seek to govern (rather than the way in which they may be regulated), by closely examines one of the most comprehensive of such projects—the use of the Norwegian sovereign wealth fund (NSWF) to project economic, policy and governance power abroad, and in the process shape the national law of states chartering companies in which they invest, private corporate governance culture globally, and the development of international law and norms for the conduct of economic activity within globalization. Part I provides an introduction, suggesting the context of the study, the premises of complexity on sovereign investing, and its implications for coordinated governance between traditionally public and private regulatory (and market) zones. Part II turns to a description of the legal and regulatory framework within which the NSWF is organized. The concept of responsible investing is introduced, and the principal of “active ownership” is then considered. Part III turns to the more formally structured institutional mechanisms for advancing its governance policies around responsible investing, focusing on the NSWF Ethics Guidelines and the Ethics Council constituted to interpret and apply it. The emerging jurisprudence of the Ethics Council is then considered as a reflection of the juridification of responsible investing. Part IV then considers the governance implications of the market activities of the NSWF. Norway has provided an architecture of governance that sits astride the borders of market and state, of public and private and of national and international. Undertaken through its sovereign wealth fund, Norway is seeking not merely to project public wealth into private global markets, but also to construct a complex rule-of-law centered framework that blends the imperatives of a state based public policy with a rules based governance system that incorporates domestic and international norms. To this Norway adds a policy-oriented use of traditional shareholder power to affect the behavior and governance of companies in which the Fund has invested. The object is not merely to maximize the welfare of the funds ultimate investors, the people of Norway (through its state apparatus), but also to use the fund to advance Norwegian public policy in the international sphere and within the domestic legal systems of other states to achieve a greater measure of inter-systemic harmonization of socially responsibly corporate governance. Private power is deployed toward the ends of public governance; public power is deployed in turn toward the ends of private governance across the global marketplace for corporate ownership; markets become sites for legislation.

[1] W. Richard and Mary Eshelman Faculty Scholar &
Professor of Law, Professor of International Affairs, Pennsylvania State
University, University Park, PA 16802 (814.863.3640 (direct) (email:
lcb911me.com.This paper was
first presented at the conference: “A Market is a Market is a Market: Financial
Regulation and the Role of Law in an Era of Globalization,” International
Conference hosted by the University of Ferrara, Italy, Nov. 9-10, 2012.My great thanks to Alessandro Somma (Ferrara),
Bertram Keller (Rostock/Berlin), and Peer Zumbansen (Osggode Hall) for the
organization of an excellent conference event. Thanks also to my research
assistant, Joseph Henry (SIA MIA 2012) for his exemplary work on this project.
This study builds on Larry Catá Backer,Sovereign Wealth Funds, Global Markets and
Coordinated Regulatory Regimes: Maximizing Returns and Legislating inFinancial Markets in A Market is a Market is a
Market (Alessandro Somma, Peer Zumbansen and Bertram Keller, eds,
forthcoming 2013).

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Copyright; Citation and Attribution:

All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

The author holds a faculty appointment at Pennsylvania State University. Notice is hereby given that irrespective of that appointment, this blog serves as a purely personal enterprise created to serve as an independent site focusing on issues of general concern to the public. The views and opinions expressed here are those of its author. This site is neither affiliated with nor does it in any way state, reflect, or represent the views of Pennsylvania State University or any of its entities, units or affiliates.

Ravitch and Backer's Law and Religion: Cases, Materials, and Readings

3rd Edition 2015

Broekman and Backer, Signs in Law

Springer 2014

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Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

An interview with the Series EditorQueries and book proposals may be directed to:Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholarand Professor of Law, Professor of International AffairsPennsylvania State University239 Lewis Katz BuildingUniversity Park, PA 16802email: lcb911@gmail.com

About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.